Department of Building Inspection

Building Inspection Commission

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Department of Building Inspection (DBI)
City Hall, 1 Dr. Carlton B. Goodlett Place, Room 400
August 30, 2004
Adopted December 6, 2004



The regular meeting of the Building Inspection Commission was called to order at 9:10 a.m. by President Santos.


Call to Order and Roll Call – Roll call was taken and a quorum was certified.




Rodrigo Santos, President
Alfonso Fillon, Commissioner
Noelle Hanrahan, Commissioner
Philip Ting, Commissioner

Bobbie Sue Hood, Vice-President
Roy Guinnane, Commissioner
Criss Romero, Commissioner


Ann Aherne, Commission Secretary




Amy Lee, Assistant Director
Ken Harrington, Special Assistant to the Director
Jim Hutchinson, Deputy Director
Sonya Harris, Secretary


President’s Announcements.

Mr. Henry Karnilowitz thanked the Department for inviting him to the annual picnic and in particular thanked Carolyn Jayin and Agatha Narvaez for doing a wonderful job.

Mr. Karnilowitz thanked Inspector John Aires for fitting his project in the previous week for a rough framing inspection that he had requested and thanked DBI for having such a wonderful staff.

Mr. Joe O’Donoghue said that he wanted to comment on DBI staff and stated that since 1986 the RBA had sought to improve efficiency, which has come about with excellent staff.  Mr. O’Donoghue said that service would now be affected because of layoffs and the illegal raiding of the treasury of this Department by the Mayor’s Office.  Mr. O’Donoghue said that single mothers have been hardest hit and spoke of someone who has been an excellent employee of the City for seventeen years and has now been laid off as she was bumped by a person who is on Workmen’s Comp.  Mr. O’Donoghue suggested that the Mayor could have avoided taking the money from DBI by putting property transfer tax fees on commercial buildings when they are sold.  Mr. O’Donoghue stated that a Bank of America building was recently sold for $400M.  Mr. O’Donoghue said that he also supported a tax on residential buildings when they are sold for over $5M.  Mr. O’Donoghue said that when the City lays off people the entire local economy suffers.


Appeal by Myers Natoma Venture, LLC, et al Represented by Steefel, Levitt & Weiss
Appeal by TRANSDEF Represented by Luce, Forward, Hamilton & Scripps



Report, discussion and possible action regarding the Building Inspection Commission’s jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal.



Presentation by parties including witnesses.



Deliberation and possible decision by the Building Inspection Commission.



Acting Director Jim Hutchinson stated that he had spoken with Deputy City Attorney Judy Boyajian and stated that she had advised that this Commission clearly has jurisdiction over this matter.

Mr. Hutchinson said that he was asked to make a determination on the 2004 permit and after careful consideration and discussions with Director Frank Chiu and several staff members he had done so as asked at the previous meeting.

Assistant Director Amy Lee gave a brief history of what had taken place at the BIC since June regarding 80 Natoma Street.  Ms. Lee summarized by saying that TRANSDEF was going to come before the Commission to discuss whether the Acting Director’s recent ruling on the 2004 site permit was correct by determining that the permit was valid.  Ms. Lee said that Myers/Natoma Corporation would be appealing the jurisdiction of the Commission although she felt that this had already been resolved as Mr. Hutchinson stated and as advised by DBI’s City Attorney.  Ms. Lee said that Myers/Natoma would discuss the suspension of permits and would also discuss 1998/1999 site permits, but this might be moot because the 2004 permit was deemed valid.  Ms. Lee stated that a Stop Work Order is in effect and continues to be effect.  Ms. Lee referred to Exhibit G, which is a stipulation between the City and County of San Francisco and Myers Development Corporation.  Ms. Lee said that in that stipulation it states that regardless of whether the suspension of the Myers’ site permit addendum is lifted during the continuance period, Myers shall not engage in any construction on the property during the continuance period other than excavation, soil enhancement and soil testing as permitted by law.  President Santos asked if this included the piling procedure.  Ms. Lee said that it would include the pilings and no more pilings could be done.  Mr. Hutchinson said that the Department did issue permits for some soil test borings to be done.  President Santos asked who would be doing those borings.  Acting Deputy Director Tom Hui said that two permits had been issued for work to be done by Treadwell & Rollo.  

Deputy City Attorney Catharine Barnes said that this agreement with the property owner did not relate to the issues before the Commission.  Ms. Lee said that she wanted to make sure that the Commission knew that there was an agreement with the Development Company.  Ms. Barnes said that this agreement relates to other issues and said that this will not affect any eminent domain procedures.  Ms. Lee asked that the Commission really isolate the issues at hand.

President Santos said that he had visited the site and asked if any of the other Commissioners had done so.  Commissioner Guinnane said that he had visited the site and actually counted the piles and marked them on the drawing.

Deputy City Attorney Barnes informed the Commission that the property owner would like to submit the jurisdictional issue on paper and did not want to use the appeal time on this matter; the owner continues to question the BIC’s jurisdiction, but want to preserve that time and argue on the other issues today.  Vice-President Hood said that the BIC has to state its opinion on the jurisdictional issue in order to proceed and they have the right to appeal the decision.  Commissioner Guinnane said that he believed that the Commission had jurisdiction and did not want to get stuck on this issue as happened at the last meeting.  Vice-President Hood said that she believed that the Commission should take a vote on the jurisdiction matter.

Vice-President Hood made a motion, seconded by President Santos, that the record should show that the BIC has jurisdiction over this appeal process.

The Commission voted as follows:

President Santos
Vice-President Hood
Commissioner Fillon
Commissioner Guinnane
Commissioner Hanrahan
Commissioner Romero
Commissioner Ting


The motion carried unanimously.


President Santos asked the appellants to state whether or not they would need additional time for their appeals.

Mr. Jack Myers introduced himself as Chairman and Chief Executive Officer of Myers Development Company and stated that Steve Atkinson would act as counsel for Myers.   Mr. Myers asked for an additional ten minutes for their argument.  The Commissioners were in agreement with this and granted twenty-five minutes for each party to present their arguments.

Mr. Steve Atkinson of Steefel, Leavitt and Weiss said that he was appearing on behalf of Myers/Natoma Venture.   Mr. Atkinson said that in his presentation he would show that DBI’s suspension of the permits beginning on June 7th was improper and unjustified and that this Commission should lift the suspension.  Mr. Atkinson gave a background of the 80 Natoma Project and the history of Myers/ efforts to proceed with that construction over the last two years and how DBI and the City have acted over the past three months to prevent that construction from proceeding. 

Mr. Atkinson gave the following background:

The project is an approximately 475’ residential high rise which would be the largest residential high rise west of the Mississippi and when constructed would contain approximately 420 residential units, 42 of which will be affordable.

·   Project was first approved by the Planning Commission in 1993

·   In 1998 the Planning Commission extended that conditional use and Section 309 approval setting a February 2001 deadline for the project to obtain a site permit.

·   Based on a February 2001 site permit the sponsor would have had until February 2004 to begin construction, and until February 2007 to complete construction without any extensions.

·   In 1978 the property owner was Swig Burris Equities.

·   In September 1998 Swig applied for a site permit.

·   One month later a permit was issued for temporary shoring.

·   In February 1999 the site permit was issued by DBI and Swig began work to provide shoring at a cost of $2.5M.

·   Swig applied for and received addendums to that site permit which continued until the end of 2000.

·   Swig had financial problems and Prudential initiated foreclosure action in the Spring of 2001.

·   In April 2002 Prudential took title back to the property.

·   In October 2002 Prudential issued a request for proposal and in December of 2002 Myers was selected.

·   Myers began a lengthy process of confirming that nothing stood in the way of developing 80 Natoma including the ability to make changes to improve the efficiency and marketability of the project.

·   In Spring 2003 meetings were held with Planning and DBI to confirm the validity of the 1999 permits and the Planning Commission entitlements.

·   Meetings continued through 2003 and into 2004.   DBI advised Myers that they needed a site permit alteration due to certain changes Myers wanted to make to the project.

President Santos asked if Myers had owned the property at this time.   Mr. Atkinson said that Myers did not own the property at this time.

·   DBI by its words and actions confirmed the validity of the site permit.

·   In October 2003 Director Chiu sent an email confirming that the site permit issued in 1999 and the time allowed to begin work on this project was six years from issuance.

·   Late 2003 into early 2004 a permit to drive indicator piles was issued and an application for a site permit alteration was filed at DBI.   A structural Peer Review Panel met several times at the suggestion of DBI.

·   On March 5, 2004 DBI issued the site permit alterations, plus a revised shoring and excavation permit.

·   Only after this did Myers close escrow on the property.

·   Shortly thereafter DBI issued the first addendum allowing piles to be driven at the site.

·   Work began in early May and by June 7, 2004 approximately 75 piles had been driven.

Mr. Atkinson said that he wanted to review the events of the last three months and how the suspension came about.

·   On May 25, 2004 Alice Barkley acting on behalf of TRANSDEF sent a letter to the City asking for a Stop Work Order on the grounds that the permits were invalid.

·   On June 7, 2004 TRANSDEF’s Stop Work Order request was listed on the DBI agenda as a      communication item, without any notice to Myers.

·   Following that meeting Director Chiu issued a two-week suspension for the purpose of   further investigation of TRANSDEF’s allegation that work had not timely commenced under the 1999 permits.

·   On June 15th Myers made a request to Director Chiu for an evidentiary hearing before DBI before any more decisions were made about the permits.   

·   On June 17th the Director Chiu acted to continue the suspensions on the grounds that work had been suspended or abandoned for over ninety days.

·   On June 18th the Director said that work should be suspended due to geotechnical concerns.

·   On July 14th the Planning Director replied to Director Chiu’s June 17th letter confirming that the March 2004 permit was valid under the Planning Commission’s 1998 approvals.  This letter was written by Director Gerald Green.

·   After the August 16th hearing DBI acknowledged that the 2004 permit was valid. 

Commissioner Guinnane asked about when the first lawsuit was filed on this property, as legal action would have an affect on the timelines for the permits.   Mr. Atkinson said that it was in April 2001 and was resolved in April 2002 when Prudential took title so there was a one-year period for dealing with financial issues.

Commissioner Guinnane asked about a lawsuit filed by Turner Construction on March 8, 2004, which was a mechanic’s lien and might also affect the timeline.   Mr. Atkinson said that work was stopped in 1999 because of a dispute between the contractor and Swig, but stated that Steefel was not counsel to Swig so he did not know the exact timeline.  Commissioner Guinnane said that if there were a two-year lapse it would give Myers another two years extension on top of the six years for the permit. Mr. Atkinson said that there were lawsuits that clearly held up the project.

Vice-President Hood said that she did not think that there was any question that the Department had withdrawn its objection on the basis of the site permit having expired because Mr. Hutchinson validated that by his letter of August 16th.   Mr. Hutchinson said that on August 20th he ruled that the altered site permit was valid.

Mr. Hutchinson said that the Department specifically let stand Director Chiu’s original suspension of the two site permits of 1998 and 1999; however that is inconsequential because the two previous site permits are unnecessary to building being that the 2004 altered site permit has been deemed valid.   Vice-President Hood said that she thought this point was moot.  Deputy City Attorney Catharine Barnes said that this might be an issue for the other party so it would not be appropriate for the Commission to rule on it without hearing from the other party.

President Fillon suggested letting the party finish his presentation and wait for questions until after.

Mr. Atkinson said that TRANSDEF does question the validity of the 2004 permit.

Mr. Atkinson went back to his report and issues he wanted to make for Myers’ appeal:

·   The suspensions of June 7th, 17th and 18th were improper because they were issued without a prior hearing in violation of the Constitutional Right to due process.

·   There was no notice to the permitee and no opportunity for a hearing prior to the suspension.

·   That there be evidence in support of the suspension.
DBI’s June 17th letter only mentions permit validity issues and does not mention safety.

·   Geotechnical concerns were raised in DBI’s June 18 letter, but did not identify any safety concerns.

·   The City is now claiming that there is safety issues regarding the potential settlement of the foundation of 80 Natoma, a foundation that Myers is not yet authorized to construct.

·   There was no basis for a Stop Work Order based on the validity of the permits because that has been recognized and it is evident that work was started under the 1999 permits.

·   The soil cement wall clearly proves that construction was started.

Mr. Atkinson stated that he wanted to speak about the 2004 permit and made the following points: 

·   The March 2004 is valid and authorizes construction.

·   The Building Code allows DBI to issue an alteration permit when a prior permit expired due to work that was started, but not completed.

·   $2.5M was spent on a soil cement wall, which was the first phase of construction under the 1999 site permit.

Mr. Atkinson said that Proposition H does not provide any basis for revocation of the 80 Natoma permits and said that in any of his letters Director Chiu did not refer to Prop H.   Mr. Atkinson made the following statements:

·   Prop H was not raised in TRANSDEF’s appeal, but was now stated in its briefs.

·   80 Natoma is not on the route of the very specific route for a train track and terminal down Essex Street.

·   Prop H directed the City to protect a route by taking further actions through resolutions or ordinances and none of that was ever done.

·   This would represent an unconstitutional taking of the authorized entitlements of this project.

Mr. Atkinson said that he wanted to address the geotechnical issues that are preventing this suspension from being lifted and made the following statements:

·   The geotechnical issues are not safety issues and should be addressed in the normal course of the addendum process.

·   80 Natoma’s piles and foundations design were based on the advice of Mr. Yap of Treadwell & Rollo one of the City’s premier geotechnical firms.

·   Treadwell & Rollo’s calculation of the expected settlement is based on their intimate knowledge on the performance of local soils including those of projects in the immediate vicinity of 80 Natoma.

·   Myers has been trying to set up a technical meeting with DBI to solve these issues, but the City Attorney’s Office has continued to block this technical meeting.

·   The Commission needs to recognize that these are issues that are handled in the proper   addendum process and are not issues that are the basis for suspension.

Mr. Atkinson gave his closing statements, which were a recap of the above issues.   Mr. Atkinson asked that the Commission lift the suspensions today.

President Santos stated that the Commission would hear from Ms. Barkley representing TRANSDEF before asking any questions.

Ms. Alice Barkley stated that she wanted to start by making a couple of corrections to Mr. Atkinson’s statements.   Ms Barkley made the following statements:

·   The e-mail referred to from Frank Chiu did not state that Myers had six years to start work it was that they have six years to complete work from a start date.

·   The piles could not be separated from the foundation.

·   Prop H is not a taking of property and initiatives and ordinances are defended vigorously by the City Attorney’s Office.

Ms. Barkley stated that staff was correct in saying that this is a very simple case.

Ms. Barkley questioned if work actually started under the 1999 permit that authorized construction of the building, not anything that was done before, but anything pursuant to that permit.

Ms. Barkley gave her explanation of various documents.

·   A 1999 permit was submitted in May and the first addendum was approved for work to begin

·   A February 1999 site permit that was issued was superceded by that permit.

·   The site permit was issued in May of 1999 and a site permit does not allow construction.

·   The Department relied on a job card that said that work had started under the site permit of   June 22, 1999.

·   There was a job card attached to the February 1999 site permit that was superceded.

·   There was an inspection job card for January 22, 1999.   Work was started five months before work was authorized.

·   The 2004 permit was not submitted until December 16, 2003 and was for a concrete building.

·   There was a conditional use application in 2002 that said the property was fenced off in late 1990 in anticipation of planned construction, which did not occur

·   January 24, 1999 a construction monitoring report that dealt with the slurry wall that said that the completion date was achieved the week of April 20; the completion date was two months before work was authorized under the 1999 site permit.

·   Work was stopped because work was scheduled for June and July, but until authorization was received everything was stopped.

Ms. Barkley referred to the slurry wall which the developer claims cost $3M.   Ms. Barkley said that this was for underpinning work, but was for the adjacent building and was not for 80 Natoma. Ms. Barkley said that it was not a slurry wall and that this is not a permanent wall.   Ms. Barkley referred to a group of permits in tab 8 of her binder.  Ms. Barkley questioned the estimated amount submitted by the Contractor for work already done.  Ms. Barkley said that perhaps all permits are not created equal.

Ms. Barkley stated that on this project there were job cards that pre-date the issuance of permits or when work was authorized.   Ms. Barkley said that since work did not start the Commission must require a new building permit and not a revision.

Ms. Barkley said that geotechnical and piling issues are safety issues.   Ms. Barkley said that recently in a public hearing Mr. Myers stated repeatedly how he would like to have a win/win situation with a new foundation design, which would create a box for the train to go through so that they can coexist.  Ms. Barkley said that with proper engineering anything could be done, but this would be the fourth foundation design.  Ms. Barkley stated that if this train “box” foundation were to be done probably all of the pilings that are in the ground now would have to come out.  Ms. Barkley said that this foundation design has never been done anywhere in the world and stated that she did not know how the Department could lift this Stop Work Order.  Ms. Barkley asked the Commission to look at the permits that were before the Commission because they were very irregular and said that maybe preferential treatment is for the downtown developers and not the small guys that people have been complaining about. 

Ms. Barkley said that Prop H was an initiative ordinance that has to be considered under a new permit.   Ms. Barkley stated that the original cost of this building was $58M and said that she thought this was low so the Department should go back and review this project because it keeps changing.  Ms. Barkley said that there was no application for the new project and the Department did not know what the final project would be.

1.    President Santos asked about the underpinning wall at a cost of $2.5M and asked Ms. Barkley if those were for addresses other than 80 Natoma.   Ms. Barkley said that one permit was for 83 Minna Street and the other for 90 Natoma and said she could find no job cards for either of these permits.  President Santos said that these might have been done under a special inspection.

Commissioner Guinnane asked Mr. Hutchinson about the 1998 and 1999 addendum permits that were approved to extend them and were done under an alteration permit and asked if that was legal.   Mr. Hutchinson said that if a project sponsor decides to change the design of a site permit the Code requires an altered site permit so that sets aside the first one and says that there is now something new and unique.  Mr. Hutchinson stated that this is then subject to review   Mr. Hutchinson said that until a permit is approved and goes out the door it can be changed.  Commissioner Guinnane said that he thought the construction cost would be higher than $65M.  Mr. Hutchinson said that the Department has the ability to change that figure. Vice-President Hood had some questions for Mr. Yap of Treadwell & Rollo.  Mr. Yap said that he had been involved with the project since 1990.  Vice-President Hood said that it was her understanding that the pilings were reviewed by a three-member board and said they had concerns about the steel pilings rusting because there is salt-water intrusion into various areas of the City.  Vice-President Hood asked about the transfer of loads from the mat foundation, which is fourteen feet thick to the pilings and asked about the pilings not going all the way down to bedrock and said that there was a discussion about old Bay clay supporting the proposed foundation. Vice-President Hood asked what the follow up was to this panel and their findings.

Mr. Yap said that the piling contractor had hired a corrosion consultant who has concluded that a three-inch grout around the pipe would be sufficient to prevent the corrosion.   Mr. Yap said that he believed that the Peer Review Panel had accepted this. 

Mr. Yap said that the foundation system for a forty-eight story building, which is what this building will be, is not uncommon in San Francisco and said that #2 Embarcadero and #3 Embarcadero were on pile supported mats. Mr. Yap said that in measuring settlements in other buildings, Embarcadero #1 only settled 1” to 1 ½”.   Mr. Yap referred to other new buildings in the City that have recently been built, one a forty-two-story building and said that they were on mats and there were no piles.  Mr. Yap said that his calculations and experience support the fact that this building will not settle by 8” or 9” as has been suggested, but will only settle about 2”.  Mr. Yap spoke about drilling borings and said that there would be five borings that would be over two hundred feet.  President Santos asked if each of the borings, the installation of the piles and the mat foundation would come under special inspections.  Mr. Yap said that Treadwell and Rollo was present when every pile was installed, but did not test every pile.  President Santos asked how many piles would be tested.  Mr. Yap said that so far two piles had been tested. The Commissioners asked Mr. Yap many questions about borings and the foundation plan along with questions about having to add additional piles.  Vice-President Hood said that she wanted to make sure that any findings by the Peer Review Panel were included as part of the permit file at DBI. 

President Santos asked who selected the Peer Review Panel.   Acting Director Hutchinson said that the panel was agreed upon by all of the parties, but said that Mr. Hanson Tom would explain how the panel was selected.  Mr. Tom stated that he has handled large projects for the past ten years and depending on the complexities different experts are called upon to help the Department with the integrity of the proposed building.  Mr. Tom said that this building would be the heaviest concrete structure west of the Mississippi so the Department was looking at people who specialize in concrete design and because of the height factor at structural engineers who have experience in designing high-rise buildings.  Mr. Tom said that the Department was also looking at people who had geotechnical experience.  Mr. Tom said that 300 Spears was a similar project and the Department wanted the same experience for this building.  Mr. Tom said that one of the people was Professor Moehle, Director of the Pacific Earthquake Center at U.C. Berkeley who is very experienced in high concrete structures.  Mr. Tom said another candidate was Mr. Joseph whose firm were the engineers for the tallest building in Malaysia.  Mr. Tom said that both Professor Moehle and Mr. Joseph were on the Peer Review Panel for the large project at 3rd and Mission Streets. 

President Santos asked who was paying for all of these experts.   Vice-President Hood asked if the Peer Review Panel looked at the pilings and the mat under the building.  Mr. Tom said that the Panel was reviewing the pilings and the connection pilings to the mat and said that is one of the concerns of the Peer Review Panel.  Vice-President Hood asked if this was looked at before the permit for the pilings was issued.  Mr. Hui said that this was addressed by the Peer Review Panel before the permit was issued.  President Santos asked if in the course of the review the Department or the Peer Review Panel found that it wanted to make modifications if that could be done.  Mr. Hui said that this is one of the issues that was brought up and Mr. Myers has agreed to add additional piles if necessary.

President Santos asked Mr. Yap if there was anything that would prevent the Developer from complementing the work that had already been done.   Mr. Yap said tiebacks would be installed and inspected and said that there was nothing that would prevent changes to work that has already been done.

Commissioner Guinnane asked what work was started in 1998 and 1999 because the tiebacks and underpinning were done under other permits as pointed out by Ms. Barkley.   Mr. Yap said that he did not know what work was done under what permits, but said that his firm installed some monitoring wells, some inclinometers, complete soils minerals and did the underpinning with chemical grouting for the two adjacent brick buildings.  Mr. Yap said that he believed the underpinning and shoring was under one drawing set and believed that it was under the same permit.  Commissioner Guinnane said that this would be under a different address.  Mr. Yap said that it might be under a different address, but it would all be under one set of drawings.

Vice-President Hood asked if there was anything in the design that would allow for the tunnel for the train to be built at a future time.   Mr. Yap said that this is something that is in the works now and said that it would be impractical to pull out the piles and said that some of the tiebacks were already in the ground and would be an obstruction.  Mr. Yap said that the contractor is suggesting hand mining and they would be able to cut these piles as they go through them.  President Santos asked if the tiebacks would be in the way.  Mr. Yap said that there were no tiebacks on the CalTrain’s property right now.  Vice-President Hood asked if the foundation had to be altered to accommodate this right of way what would be involved.  Mr. Yap said that the soil would have to be improved and the unstable soil would have to be removed and replaced with suitable material.  Vice-President Hood asked if the tube would be constructed right away and said she was trying to get an image of how this tunnel would go through a fifty-foot building.  Mr. Yap stated that it would have to be aligned every foot and space would be left for the tunnel to come through.  President Santos asked if Mr. Yap was the engineer for the TransBay tunnel as well as the 80 Natoma project.  Mr. Yap said that TransBay have their own consultants.  President Santos thanked Mr. Yap for this presentation.

Commissioner Hanrahan asked about cutting the pilings as the tunnel went through and asked if this would affect the structural integrity of the building.   Mr. Yap said that there would be no more piles and said that the new system would not use piles and would remove the unsuitable soil and fill it with concrete.

Commissioner Guinnane said that in looking at the site permit that was issued on the property it was issued in February and the first inspection was in January so it was ahead of time and then on the job card there was no activity until August 2003.   Commissioner Guinnane stated that he visited the property and in talking to the neighbors determined that fencing was being installed around April 2004 and then piling began the first week of May.  Commissioner Guinnane said that the time lapsed is forty-four months and said that he could not see where the work has been done under the permit for forty-four months, but these are not the site permit and are on different addresses.  Acting Director Hutchinson said that in looking at a project it is very difficult for the Department to determine exactly when work starts on a project and that was part of the problem today.  Mr. Hutchinson stated that he had spoken with Director Chiu about this and they felt that work had started.  Mr. Hutchinson said that he had met with DBI staff and the City Attorney’s Office and other factors were considered in determining that work had started on this project in considering the whole development.  President Santos said that the work of 80 Natoma could not begin until the underpinning and other work had been done on properties surrounding this project so work done on 90 Natoma would be an indicator that work had started on the development.  Mr. Hutchinson said that was correct.  Vice-President Hood said that the workers would have to be on the site at 80 Natoma to do that underpinning.  Mr. Hutchinson said that work would be considered as starting without the addendum and that is the way DBI has operated in the past.   

At 11:15 a.m. the Commission took a break.

The meeting reconvened at 11:30 a.m.

Commissioner Guinnane said that he had some concerns about selective enforcement with this project and pointed out a project at 150 California Street where the site permit was issued on 11/19/90 and there was no inspection until 4/06/99 some nine years later.   Commissioner Guinnane also cited 555 Jackson Street where the site permit was issued on 12/23/97 and there was no inspection until 12/09/02 and asked what was the issue with those properties and what the Department’s policy was.  Mr. Hutchinson said that there could have been potential litigations that stopped the clock and with the 1997 project the developer could come have come in and asked for an eighteen-month extension.  Mr. Hutchinson stated that anyone can come in and pay for more extensions, but this does not always happen.  Mr. Hutchinson said that he would hope that all projects would be treated equally and said that he could go back and research these two properties. Commissioner Guinnane said that he did not think there was any issue with this project at all.  President Santos asked if the Department used the underpinning of adjacent properties and other necessary work done on these properties to indicate that work had started.  Mr. Hutchinson stated that this was standard practice at DBI with buildings of this size.  Vice-President Hood said that this has been her experience over several years; that it is not written anywhere, but is understood and has been indicated in meeting notes and other documentation. 

President Santos asked about the selection of the Peer Review Panel and who paid for it.   Mr. Hutchinson stated that the project sponsor pays for this very expensive process.  Mr. Hutchinson stated that because of the complexity of this project Director Chiu had hired yet another group of experts to review the plans of this project and said that they had been working for the past couple of weeks.  Mr. Hutchison said that he would find out how extensive this research was, how much it was going to cost and how it would be paid for. 

President Santos asked for public comment.

Mr. David Schoenbrunn introduced himself as Chairman of TRANSDEF.   After much discussion regarding Mr. Schoenbrunn’s status as a member of the public or an appellant and public comment from Mr. Joe O’Donoghue asking that Mr. Schoenbrunn be allowed to speak, the Commission decided to allow rebuttal time to be ten minutes.  Mr. Schoenbrunn would be allowed to speak during TRANSDEF’s rebuttal time.

Mr. Norman Roth of San Francisco Tomorrow spoke against the project stating that the 2004 alteration permit should never have been issued.   Mr. Roth said that Proposition H’s intent was that the Cal Train/TransBay Terminal be connected and asked that the alteration permit be revoked.

Mr. Ken Rakowski introduced himself as Vice-Mayor of Emeryville and said that this transportation hub would reap economic benefits for the 200,000 – 300,000 people that would be moved in and out of San Francisco.   Mr. Rakowski stated that he was against the project and said that Proposition H should have been imposed as the public desired.

Ms. Margaret Osumi of Bay Rail Alliance spoke against the continuation of this project and handed out copies of Proposition H.   Ms. Osumi said that Proposition H was a City priority and that no downtown development was to interfere with the extension.  Ms. Osumi stated that the Myers project had changed gears many times and that there was no set plan.  Ms. Osumi asked that the BIC continue the Stop Work Order and revoke the 2004 permit.

Mr. Joe O’Donoghue of the Residential Builders said that the Director had made a decision based on interviews and research that work had begun on this project.   Mr. O’Donoghue stated that high-speed trains are needed, but so is development and said that Mr. Myers had acted and behaved like a developer.  Mr. O’Donoghue said that it has been DBI policy to determine the start of work in a very broad policy and said that this project should be treated the same as other large projects in the City.  Mr. O’Donoghue pointed out that Prop H will have to raise Bonds and said that no Bond issue had been passed to date.  Mr. O’Donoghue said that both the development and the train project should be able to exist.

President Santos called on Mr. Myers’ counsel to begin rebuttal and reminded everyone that ten minutes would be allowed to each side for rebuttal.   Mr. Steve Atkinson said that the key issue before the BIC was the start of construction and DBI’s policy has been to include the shoring permits as proof that work had started on this project.  Mr. Atkinson said that there was one shoring permit that was for the entire perimeter of the 80 Natoma site that had begun a few days before the site permit was issued.  Mr. Atkinson said that he wanted to state that Myers Development had only one foundation design and that was for a foundation mat on top of piles and other foundations designs were only discussed, so the BIC should not take into account potential designs not even submitted.  Mr. Atkinson discussed a permit that was taken out for a parking lot and explained that this was a temporary parking lot because nothing had been built above ground.  Regarding Prop H, Mr. Atkinson stated that Prop H had a specific route in a draft EIR that was not intersecting the 80 Natoma site.  Mr. Atkinson said that Myers Development used due diligence in its dealings with DBI and said that there is always a lot of confusion with a project of this size.  Mr. Atkinson said that he wanted to note that construction was stopped due to litigation on the project with contractors, lenders and bankruptcy procedures and said that the project developer should not be punished for this interruption, as the intent was that the project would always move forward.  Mr. Atkinson pointed out that this has been DBI’s practice in the past regarding large projects.

Mr. David Schoenbrunn introduced himself as President of TRANSDEF and said that there was an admission that staff considers this permit to have commenced work based on work done before the permit was issued under another permit.   Mr. Schoenbrunn stated that this was a change to the Building Code and said that no work could start under a site permit without knowing what was going to be built.  Mr. Schoenbrunn said that TRANSDEF had no problem with 80 Natoma being built in conjunction with a rail tunnel and stated that the second EIR for Prop H shows 80 Natoma as part of the rail right of way and that Prop H stated that no project should hinder or make more costly the building of the TransBay terminal.   Mr. Schoenbrunn said that TRANSDEF strongly believed that the 2004 permit was issued in error and urged the Commission to revoke it.

Ms. Alice Barkley said that the permits issued by the Planning Department and as discussed by the Commission talk about time and when work must begin.   Ms. Barkley stated that when a permit is challenged, it is the permit that is challenged and it does not talk about finances or anyone else taking over; that person must comply with the law.  Ms. Barkley said that Prop H looks at specific language; the Commission is in charge of administrating the Building Code and the Code says that every permit issued by the Director under the Building Code, unless an extension is granted by the Director, shall expire.  Ms. Barkley said that the two permits might have been extended, but the work done under the $3M that was talked about should not qualify as work started because this underpinning work was done before the site permit was issued and work was allowed to go forward before it was plan checked.  Ms. Barkley stated that these two ground injection permits were only for $25,000 each and there was another permit to go 12 feet below grade in the amount of $35,000.  Ms. Barkley said that there was testimony saying that the developer put in soldier beams going all the way down to 100 feet and asked if the BIC and DBI were saying that work like that could be done illegally, without a permit and no one was going to do anything about it.  Ms. Barkley urged the BIC to look at the sequence of events and said that there was a series of permits, but no permit for the soldier beams.  Ms. Barkley said that TRANSDEF was asking that if the BIC found that no work had started, as required by the Building Code, under the site permit then a new building permit would be required.  Ms. Barkley said that her client was not asking DBI not to issue a new permit, or not asking to prevent this project from being built in the future, but is asking that everyone follow the law.  Ms. Barkley said that it was simple to look at the law and apply it.  Ms. Barkley thanked the Commission.

President Santos stated that this was the conclusion of the presentation by both parties and public comment and asked if any of the Commissioners had questions for staff or the appellants. 

Vice-President Hood said that she would like to break the issues into two pieces as indicated by Director Chiu’s June 18th letter that continued the Stop Work Order.  Vice-President Hood said that the two issues were when the permit expired and the constructions of foundations.  Commissioner Hanrahan said that she thought there were other issues to be considered.  Vice-President Hood said that Prop H might or might not be an issue and said that she wanted to discuss the foundation as reported on by Dr. Yap.

Vice-President Hood stated that Director Chiu wrote a letter stating that the permits had expired, but said that it appeared based on the testimony given and the August 20th letter written by Acting Director Hutchinson, that after further research the Department determined that work was found to be started.  Vice-President Hood asked if that was correct.   Mr. Hutchinson stated that he spoke with Director Chiu and conferred with Deputy City Attorney Judy Boyajian, Assistant Director Lee, Assistant to the Director Ken Harrington, Tom Hui and Hanson Tom to question if it was correct to suspend the permit.  Mr. Hutchinson said that Director Chiu had stated that due to ninety days of inactivity the permits were suspended, but Director Chiu also stated that there was a preponderance of evidence that work had started.  Mr. Hutchinson said that in consulting with staff he was then able to move forward and determine that the 2004 permit was valid and had been filled out correctly on a form 3-8, altered site permit and though the two permits had expired, work had started.  Vice-President Hood asked what the date of the altered site permit was.  Mr. Hutchinson said that it was filed in 2003 and issued March 25, 2004.  Mr. Hutchinson said that he wanted to make it clear that the decision that work started was made after much discussion with the Deputy City Attorney and senior staff to determine that this is the way the Department handled this issue over the years on other projects. 

President Santos asked about structural documentation and Ms. Barkley’s statement that there was no valid permit for the soldier piles going down 100 feet.   Acting Deputy Tom Hui said that he could not give specific details because there were some 37 permits, all suspended, some were approved and some were under revision.  Mr. Hutchinson said that because of a pending lawsuit no information could be given.  President Santos asked Mr. Hui if he was the Structural Engineer who reviewed the shoring design.  Mr. Hui answered that it was originally K.K. Chiu, who had since retired from DBI, and then Mr. Hui later reviewed it.  Vice-President Hood said that she did not believe that going beyond the scope of the permit was one of the things that the Commission was being asked to look at today and perhaps this was something that the Acting Director could look into.  Vice-President Hood stated that it appeared to her that the altered site permit that was issued on March 25, 2004 set up a new site permit and there was a time when that could have been appealed, but it stayed.  Vice-President Hood said that the subsequent underpinning was typical in San Francisco as starting work on a project. 

Vice-President Hood said that she wanted to make a motion with respect to the time expiration of the permits.   Vice-President Hood stated that the permits had been renewed through the alternate site permit dated March 25, 2004, therefore work did legally start when the adjacent unpinning was done, thereby the permit was still in effect and is still in effect today. Commissioner Hanrahan seconded the motion.

Commissioner Fillon said that he was concerned that the Commission not exceed its legal jurisdiction.   Vice-President Hood said that this would just be a part of the Commission’s findings.  Deputy City Attorney Catharine Barnes suggested that this be voted on as a finding and said that she could help by drafting findings from this meeting to show the concerns of the Commission, but the final act of the Commission would be to grant, deny or modify the decision of the Director of Building Inspection.  Vice-President Hood said that she agreed that this should be in the form of a finding.

The Commission voted as follows:

President Santos
Vice-President Hood
Commissioner Fillon
Commissioner Guinnane
Commissioner Hanrahan
Commissioner Romero


The motion carried by a vote of 5 to 1.


Vice-President Hood said that another issue was raised in Director Chiu’s June 18th letters, which were concerns about the geotechnical issues.  Vice-President Hood stated that Dr. Yap had been very helpful and said that she was impressed by the qualified Peer Review Panel that was in place and said that the Panel’s findings should be microfilmed and filed with the permit. 

Vice-President Hood quoted from Prop H and said that this issue should have been dealt with in the Environmental Review process and also in the Department of City Planning, but for some reason it was not taken into consideration.  Vice-President Hood said that she believed that Prop H was relevant.  Vice-President Hood said that thru further pursuits in the court the developer would probably be told that Prop H was not enforceable or that the land could be taken by eminent domain.  Vice-President Hood said that Dr. Yap explained that there was an alternative available that would not exclude the CalTrain tunnel and said that she thought that this would be the best alternative, but questioned who would pay for that.  Vice-President Hood said that she believed that Prop H did apply and that the foundation should be modified to accommodate the tunnel.  President Santos asked Ms. Barnes if the Commission should discuss Prop H as part of the decision making process along with the technical issues.  Ms. Barnes said this did not have to be part of the decision making process because all the Commission had to do was to uphold, deny or modify the decision of the Director, but this was a De Novo hearing and the Commission could uphold, deny or modify the decision based on the Director’s letter or for any other reason.  Ms. Barnes said that one of the reasons might be that the Commission believes that Prop H has some bearing on this case.  Ms. Barnes stated that the Department has suggested that the Commission get an opinion from the City Attorney about Prop H and said she would be happy to write an opinion on that, but did not have one today.  President Santos said that Prop H had to do with the Environmental Review Process and the Planning Department and Planning gave the ok to 80 Natoma.  Ms. Barnes stated that Prop H identified a route with a specific right-of-way and the question is whether that route has anything to do with 80 Natoma.  Ms. Barnes said that whether it does or not there is a question as to whether this would enable the BIC to address that route in any land entitlement decisions on this Board.  Ms. Barnes said that she did not know if Director Green of City Planning had considered Prop H.  Vice-President Hood said she was only concerned with what the BIC had to do as required by law and said that she thought that Prop H was a concern because Profession Yap testified that the right-of-way goes under one-half of the tower and there were alternative foundations recommended to deal with that and other technical issues.  Vice-President Hood said that she would like to uphold Director Chiu’s decision based on these geotechnical issues.  Commissioner Guinnane said that he totally disagreed because the permits were approved before Prop H came before the voters.  Vice-President Hood said that the alternate site permit was dated March 25, 2004.  Commissioner Guinnane said that he did not believe that Prop H applied here.  Vice-President Hood stated that they had a difference of opinion and Commissioner Guinnane said that it was not the first time.  Commissioner Hanrahan said that the broad language of Prop H said that the tunnel would be built wherever feasible. 

President Santos said that the BIC could not assume that Director Green took Prop H into consideration in renewing the site permit and asked Ms. Barnes if the BIC could ask Mr. Green if he had.   Ms. Barnes said that the Department could continue this issue and ask Mr. Green or could ask for an opinion from the City Attorney.  Vice-President Hood said that this was before the BIC right now and said that she felt very strongly that Prop H did apply to the BIC.  Commissioner Fillon said that he was not 100% convinced whether Prop H did or did not apply, but said that he thought that this conflict should have been resolved during the Planning process as it was not up to the BIC to deal with land issues.  Vice-President Hood said that the Proposition did not refer to a particular agency.  Commissioner Fillon stated that it was not up to DBI staff to know about Prop H and said that DBI staff assumes that Planning has taken care of land use issues before passing the permit onto DBI.  Commissioner Hanrahan said that she thought that it was the BIC’s responsibility to consider this issue and not just pass over it because another City agency did so.  Vice-President Hood agreed. 

Commissioner Guinnane said that two of the permits had work started on them before Prop H went to the voters.   Ms. Barnes said that the entitlements that the property owner had before Prop H went to the voters would remain in effect and would be uninfluenced by Prop H and said that was one of the reasons she was urging the Commission to let her write some findings.  Vice-President Hood said that she felt that the addenda that was issued in 2004 would have to adhere to the current law and that would include Prop H.  Mr. Hutchinson stated that the new addenda would have to adhere to the current Building Code and stated that this project is still in a state of flux as there is no final design.  Mr. Hutchinson stated that the Peer Review Panel of very qualified people was trying to accommodate both the building and the trains.  Acting Deputy Director Tom Hui came forward to say that the Building Department did not consider Prop H and did not have the expertise to do so, as that was a Planning issue.  Vice-President Hood stated that Prop H was a very unusual ordinance because typically the ordinance spells out who is responsible for carrying out the ordinance, but in this case it doesn’t, so there is an unusual burden. 

After much discussion it was decided to continue this item in order to get an opinion from Deputy City Attorney Barnes and to have her come up with findings regarding entitlements and the effect of the entitlements on this project.   Ms. Barnes said that this opinion would be given to the Commission in confidence.  Commissioner Fillon said that he was in favor of getting this opinion because of the danger of the Commission and the Department getting into legal trouble.  Commissioner Guinnane asked how long it would take to get that opinion.  Ms. Barnes asked when the next meeting would be.  Secretary Aherne said that the next meeting would not be until September 20, 2004 because September 6, 2004 was a holiday.  Ms. Barnes said that she could have the opinion ready for the September 20, 2004 meeting and would have it to the Commission by September 15, 2004

President Santos made a motion, seconded by Commissioner Guinnane to continue this item until the meeting of September 20, 2004 or a later meeting if findings are not available by September 15, 2004.   The motion carried unanimously. 



Review Commissioner’s Questions and Matters.

a.    Inquiries to Staff.  At this time, Commissioners may make inquiries to staff regarding various documents, policies, practices, and procedures, which are of interest to the Commission

Commissioner Hanrahan said that there was some public discussion in the newspapers about a Mayor’s initiative involving DBI regarding her neighborhood, the Bayview/Hunter’s Point area and abandoned buildings.   Commissioner Hanrahan asked who the staff person at DBI was who was assigned to this task and if she could have a report on this item.   Acting Director Hutchinson said that the Director, who was on vacation, had attended a meeting the previous week and said he would be happy to report back.  Commissioner Hanrahan said that she was particularly interested in her neighborhood and avoiding foreclosures.  Commissioner Hanrahan stated that she wanted DBI to be sympathetic to the people in Bayview/Hunter’s Point who might be having problems with keeping up their property.  Mr. Hutchinson said that he hoped that Department staff was sympathetic to all neighborhoods and said that he thought the evidence that they were was that there were not a lot of citizens coming before the Commission to complain.  Commissioner Hanrahan said that she was not saying that there was anything wrong, but would just like this item put on a future agenda. 

Mr. Joe O’Donoghue of the Residential Builders Association said that he had been to a meeting the previous week regarding Commissioner Hanrahan’s statements.   Mr. O’Donoghue stated that the Mayor had made statements that were inconsistent and once again the Mayor is running government though press headlines with no consultation with the various departments involved.  Mr. O’Donoghue said that it was as if the Mayor was running for reelection by talking about reducing crime and drug dealing in the Bayview/Hunter’s Point area.  Mr. O’Donoghue said that Housing or Building Inspectors could not reduce crime through Code Enforcement, just as land use policies were used in planning to stop growth in this City and now there is a housing disaster; it is just confusion and misconception.  Mr. O’Donoghue said that he thought that Commissioner Hanrahan had raised a very good point, as the Mayor should send over his program for the Commission to see if it makes sense.  Mr. O’Donoghue said that the bolts and nuts are coming off the wheels in this City, as no one is in charge and stated that legal authorities cannot do illegal things against homeowners.

Commissioner Hanrahan said that she wanted to explain to the Commission why she was so interested in this issue.   Commissioner Hanrahan said that she was deeply concerned about the level of violence in her neighborhood, which has the highest rate of homeownership in the City.  Commissioner Hanrahan said that she wanted to preserve the character and integrity of this predominantly black community.  Commissioner Hanrahan stated that many people are subject to losing their homes and she wanted to know what DBI is doing in its capacity to prevent that and what the Mayor is asking, as she is deeply concerned about her community.

Mr. O’Donoghue said that recently the Department was illegally involved in some kind of enforcement in the adult entertainment industry where fifteen Inspectors were sent out in one week to check on Code Violations where there was no complaint.  Mr. O’Donoghue said that the Department was sent out because there was an ex-stripper who had a problem with an establishment where she worked and decided to file protests.  Mr. O’Donoghue said that the City went after the heterosexual clubs, and not any gay clubs, but the City Attorney, the District Attorney, the Police Chief and DBI got involved.  Mr. O’Donoghue said that said that this was absurd and that sex should be left to the sexologists and said that this was crazy, but made for good headlines.  Mr. O’Donoghue said that it was bad policy to inflict injury on innocent people.

b.  Future Meetings/Agendas.  At this time, the Commission may discuss and take action to set the date of a Special Meeting and/or determine those items that could be placed on the agenda of the next meeting and other future meetings of the Building Inspection Commission.

There was no comment on this item.



Public Comment:  The BIC will take public comment on matters within the Commission’s jurisdiction that are not part of this agenda.

Mr. Rolfe said that he thought that it was a good move for the Commission to take 80 Natoma into consideration and suggested that the Commission co-ordinate with the S.F. County Transportation Authority who is studying the alleged solution to 80 Natoma.   Mr. Rolfe said that the approved and certified EIR for the TransBay terminal was issued for comment in October 2002 and no comment was offered.  Vice-President Hood reminded Mr. Rolfe that this item was for comment on items that did not appear on the agenda.

Mr. Joe O’Donoghue said that recently there was a Chronicle article stating that the BIC should be a more generalized Commission, as there were too many specialists and experts in the various fields.  Mr. O’Donoghue stated that today’s meeting demonstrated the need for that expertise and complemented the Commissioners on their abilities.  Mr. O’Donoghue said that today’s meeting called for technical expertise and the public was well served because the seats of landlord, tenant and public-at-large serve the citizens of San Francisco.  Mr. O’Donoghue said that other departments or commissions would do very well to note the level of competence of this Commission.  Mr. O’Donoghue said that the Chronicle should eat its words and said that today was very educational.  Mr. O’Donoghue said that he was very proud to have been involved in setting up this Commission of very dedicated, qualified people, even though he might not always agree with their decisions.




Commissioner Guinnane made a motion, seconded by President Santos, that the meeting be adjourned.  The motion carried unanimously.


The meeting adjourned at 12:10 p.m..




Respectfully Submitted,

Ann Marie Aherne
Commission Secretary



Deputy City Attorney Catharine Barnes to submit findings to the BIC on 80 Natoma.

Pages 14-15

Deputy City Attorney Catharine Barnes to give an opinion to the BIC on 80 Natoma and Prop H.

Pages 15-17

Future Agenda Item – Update on Mayor’s Task Force regarding Bayview/Hunter’s Point and DBI involvement. – Commissioner Hanrahan

Pages 17-18